Carter v. Howard

39 Vt. 106 | Vt. | 1866

The opinion of^the court was delivered by

Barrett, J.

The first eight items would be barred by the statute of limitations, provided the defendant can avail himself of that defence before the referee without having pleaded it in bar as would be necessary if the case had been for trial in court. *The raising and insisting upon the point made by the plaintiff in this respect, is but an additional illustration of what has long been settled, if nothing else in the law has been, namely: that nothing is to be regarded by the bar as settled, so long as suits arise in which points of law are involved. In Eddy v, Sprague, 10 Vt., 216, it was decided that when a cause is referred by rule of court, it is not considered to be a reference of the particular issue joined in court, but a reference of the whole cause to be triid ou its merits, and in the opinion delivered in that case it is said: “if the case is referred standing on a plea of release, it is competent for the arbitrator to try the case ou any other issue. The declaration is important only in order to determine the extent of the submission, and with this view a copy of it is, iu practice, usually attached to the rule issued by the clerk. But it was never known that any other point of the pleadings was copied into the rule, which is the authority for the referees to proceed.” Following this is a succession of cases along in several volumes of the reports recognizing, and some of them adopting the same principle and rule, and not one of them making an intimation of a different doctrine, practice or view, and we come at length to Fulton v. Wiley, 32 Vt., 762, in which it is said: “ that the defendant may interpose any defence to the plaintiff’s right of action before the referee, that he could interpose, if th'e case were on trial in the county court, under any form of pleading that would be an appropriate answer to the alleged cause of action.”

In Cook v. Carpenter & Cook, 34 Vt., 121, the doctrine and rules are again stated by Poland, Ch. J., in exact consonance with what is said and held iu all the preceding cases involving or bearing on the subject.

We will defer any further discussion of the subject till the next case is before us on the same point, saying only that we think the county court had sufficient warrant for allowing the statute to operate as a bar to said eight items.

The remaining question is, whether the defendant is liable to pay the residue of the account. We regard the referee’s report as showing as matter of fact that the services were rendered by the procurement of the wife and on her credit. The plaintiff made his charges to the defendant’s wife “ for the reason that he thought he should bo more likely to get his pay from her than from the defendant.”

The facts distinguish this case very widely from that of Day et al. v. Burnham, 36 Vt. 87. The decisive point is, whether the mere fact that the services come under the head of necessaries, and are sucli as the Husband would be liable to pay for if rendered on bis credit, countervails tbe legal effect of the other fact, namely: that the services were not rendered on his credit, but were rendered on the credit of the wife. This is not a case of any ignorance or doubt in the mind of the plaintiff as to the character and relations of the person, Mrs. Howard, by whom he was employed, and to whom he gave the credit. With full knowledge of all the facts connected with or bearing on the subject, he chose his debtor, and, upon common principles, sustained and illustrated by abundant authority, we think he cannot repudiate that choice and choose again. Howard’s legal duty as husband to pay for doctoring his wife in case the doctoring had been done upon the credit of that duty, would not preclude the plaintiff from ignoring, such credit, and performing the services upon the credit of some other person. If the credit is so given, and nothing is subsequently done to authorize a transfer of it to some other person, the plaintiff must stand upon the transaction as it originally occurred ; and this, too, irrespective of the relation existing between the person to whom he in fact gave the credit, and the one to whom he might have given it, but did not. Many cases might be cited on this point. See Patterson v. Gandasequi, 15 East, 62. Dunl. Pal. Ag., 247-9, and cases cited in notes. Sawyer v. Cutting, 23 Vt, 486. 1 Pars, on Cont. 288, and cases cited. These views and

authorities do not conflict with the decision in Black v. Bryan, 18 Texas, 453, in which Ch. Hemphill cites and relies on loyal sources of law and judicial logic for the grounds and reasons of the decision made in that case.

The judgment of the county court is affirmed.